New Evidence: Rodi v Western Australia [2018] HCA 44

On the 10th October 2018, the High Court unanimously allowed an appeal from the Court of Appeal
of the Supreme Court of Western Australia (‘the Court of Appeal’). At trial, the appellant
was charged with possession of a prohibited drug with intent to sell or supply it
to another. At trial, he admitted to possession of the drug, however, denied intent
to sell or supply and maintained that possession was entirely for personal use. The
jury found the appellant guilty at trial.

At the Court of Appeal, the appellant requested an extension of time in order to appeal
against his conviction on the grounds that there was new evidence showing a miscarriage
of justice. The Court of Appeal by majority, refused the application and dismissed
the appeal. The High Court, however, accepted the appellant’s argument that the Court
of Appeal erred in finding that the new evidence did not give rise to a significant
possibility of an acquittal by the jury. Therefore, the appeal was allowed, the appellant’s
conviction was quashed and a new trial is to be held.

Facts

The appellant was found in possession of 925.19 grams of cannabis, and was initially
charged with possession with intent to sell or supply the drug to another person.
However, the appellant claimed that the drugs were entirely for personal use and that
it was harvested from the two plants he grew in his residence. The prosecution’s witness,
Detective Coen, testified that in his experience, that the yield of similar plants
found in his residence, would be between 100 grams and 400 grams per plant. The Detective
also added that the yield of the two plants in the appellant’s home would likely be
on the lower end of this scale. Therefore, it was unlikely in his opinion, that the
cannabis would be sourced solely from the appellant's plants.

However, in the Court of Appeal, the appellant relied on new evidence which consisted
of transcripts which showed that Detective Coen had previously given evidence that
similar cannabis plants, as were in the appellant's possession, may yield between
300 grams to 600 grams. This would have been consistent with the appellant’s submissions
that the cannabis in his possession came from the cannabis plants in his possession.

The Court of Appeal admitted this evidence, however, refused the application for an
extension in time and dismissed the appeal. The evidence was confirmed to be new evidence,
but was held that non-disclosure to the appellant did not give rise to a miscarriage
of justice.

To summarise the decision of the majority of the Court of Appeal, at [18]:

“[N]either the fresh evidence nor the non-disclosure of the Earlier Coen evidence
established that a miscarriage of justice had occurred. For the purposes of the appeal
to this Court it is material to note that this was for reasons which included that:

once the appellant's possession of the cannabis was admitted, the State had no further
onus of proof to discharge;

the appellant called no expert evidence, and did not object to Detective Coen's giving
of expert evidence on cannabis yields on the ground that he was not qualified to do
so, or challenge his relevant evidence-in-chief in cross-examination;

there was a reasonable explanation for defence counsel's decision not to challenge
Detective Coen's opinion evidence about typical cannabis yields, and no incompetence
on the part of defence counsel at trial was alleged

… In addition, and importantly, Buss P held that Detective Coen's explanation for
his change in opinion on typical cannabis yields was "credible and cogent". … [and]
"there is no significant possibility that, on the whole of the trial record and the
additional evidence, a fact-finding tribunal, acting reasonably, would be satisfied
that the appellant has established on the balance of probabilities that he did not
intend to sell or supply to another any of the 925.19 g of cannabis."”

However, Mitchell JA in dissent at [21], stated:

“[That there was] a miscarriage of justice had occurred because the appellant had
been deprived of an opportunity to make an effective challenge to Detective Coen's
evidence. His Honour noted that the "extent of the change in [Detective Coen's] position
was dramatic" and that the 925.19 g of cannabis found was well within the 600 g to
1200 g range suggested by the Earlier Coen evidence. Detective Coen's evidence at
trial had been the basis for a contention by the prosecution that the appellant was
lying in his evidence about the source of his cannabis. In this regard … the fresh
evidence [was] at least capable of calling into question an important aspect of the
State's evidence, which was potentially influential in the jury's assessment of the
appellant's evidence.”

Decision

At the High Court, the appellant argued that the Court of Appeal erred in finding
that this new evidence did not give rise to a significant possibility of acquittal.
The High Court accepted this and found that the appellant’s credibility was significantly
impacted by Detective Coen’s evidence. The Court also took into consideration the
effect of doubt on the reliability of Detective Coen’s explanation, as he had submitted
varying opinions.

The High Court elaborated at [28]:

“There was no issue between the parties as to the test to be applied in order to determine
whether fresh evidence requires that a conviction be set aside and a new trial had
on the basis that a miscarriage of justice has occurred. It is settled that a miscarriage
of justice will be established where fresh evidence, when viewed in combination with
the evidence given at trial, shows that there is a "significant possibility that the
jury, acting reasonably, would have acquitted the accused" had the fresh evidence
been before the jury. Nor was it in dispute that the additional evidence adduced in
the Court of Appeal was fresh evidence insofar as it was evidence which was not available
to or obtainable by the appellant with the exercise of reasonable diligence. That
being so, a miscarriage of justice would be established if there were a significant
possibility that the jury acting reasonably might have acquitted the appellant had
that evidence been available to it.”

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